<PAGE> 1
As filed with the Securities and Exchange Commission on June 7, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
============================================
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMERISOURCE HEALTH CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 23-2546940
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
------------------------
300 Chester Field Parkway 19355
Malvern, Pennsylvania (Zip Code)
(Address of principal executive offices)
AMERISOURCE HEALTH CORPORATION
1995 STOCK OPTION PLAN
and
AMERISOURCE HEALTH CORPORATION
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the Plan)
------------------------
TERESA T. CICCOTELLI, ESQ. Copy to:
Legal Counsel and Secretary CRAIG L. GODSHALL, ESQ.
AmeriSource Health Corporation Dechert Price & Rhoads
300 Chester Field Parkway 4000 Bell Atlantic Tower
Malvern, Pennsylvania 19355 1717 Arch Street
(Name and address of agent for service) Philadelphia, Pennsylvania 19103
(215) 994-4000
(610) 296-4480
(Telephone Number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be Registered Registered(1) offering price per aggregate offering Registration Fee
security(2) price(2)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 1,218,536 $23.75 $28,940,230.00 $9,979.39
par value $.01 per share Shares
============================================================================================================================
</TABLE>
(1) Represents the number of shares of Class A Common Stock initially
issuable upon exercise of the Options, including 1,168,536 shares
pursuant to the 1995 Purchase Plan and 50,000 shares pursuant to the
Non-Employee Director Stock Option Plan. Also registered hereby are
such additional indeterminate number of shares of Class A Common Stock
or other securities as may become issuable upon exercise of purchase
rights or otherwise by reason of adjustments pursuant to the
anti-dilution provisions of the Plans.
(2) Estimated solely for the purpose of computing the registration fee in
accordance with paragraphs (c) and (h) of Rule 457 under the
Securities Act of 1933 on the basis of the average of the high and low
prices of $24-1/2 and $23 per share, respectively, reported on the
NASDAQ National Market on June 2, 1995.
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<PAGE> 2
PART I. INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS.
ITEM 1. PLAN INFORMATION.
Information required by Part I to be contained in the Section 10(a)
Prospectus has been omitted from the Registration Statement in accordance with
the Introductory Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYER PLAN ANNUAL INFORMATION.
Information required by Part I to be contained in the Section 10(a)
Prospectus has been omitted from the Registration Statement in accordance with
the Introductory Note to Part I of Form S-8.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant pursuant to Section 15(d) of
The Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated herein by reference:
(a) the Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1994 and March 31, 1995 for AmeriSource Health
Corporation, formerly named AmeriSource Distribution
Corporation;
(b) the Annual Report on Form 10-K for the fiscal year ended
September 30, 1994 for AmeriSource Health Corporation,
formerly named AmeriSource Distribution Corporation;
(c) the definitive prospectus filed by the Registrant with the
Commission pursuant to Rule 424(b) on April 3, 1995
(Registration No. 33-57513); and
(d) the description of the Class A Common Stock of the Registrant
contained in the Registrant's Form 8-A (No. 000- 20485) filed
with the Commission on March 24, 1995.
In addition, all documents subsequently filed by the registrant with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act prior to the filing with the Commission of a post-effective amendment that
(i) indicates that all securities registered hereby have been sold or (ii)
effects the deregistration of the balance of such securities then remaining
unsold shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Class A Common Stock issued pursuant to
the Offering will be passed upon for the Company by Dechert Price & Rhoads,
Philadelphia, Pennsylvania. Barton J. Winokur, a partner of Dechert Price &
Rhoads, which performs various legal services for the Company, is a director of
the Company and owns 19,750 shares of the Class A Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation, as amended (the "Charter")
provides that directors of the Company shall be entitled to all limitations on
the liability of directors available under the Delaware General Corporation Law
(the "DGCL"). Further, the Charter provides that a director shall not be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions by the director not in good faith or which involve intentional
misconduct or a knowing violation of the law, (iii) acts described under
Section 174 of the DGCL relating to the declaration of dividends and purchase
or redemption of shares in violation of the DGCL or (iv) for any transaction
from which a director derived an improper personal benefit. In addition,
Section 145 of the DGCL and Article IV of the Company's Bylaws under certain
circumstances, provide for the indemnification of the Company's officers and
directors against liabilities which they may incur in such capacities.
In general, any officer or director of the Company shall be
indemnified by the Company against expenses including attorneys' fees,
judgments, fines and settlements actually and reasonably incurred by that
person in connection with a legal proceeding as a result of such relationship,
whether or not the indemnified liability arises from an action by or in the
right of the Company, if the officer or director acted in good faith, and in
the manner believed to be in or not opposed to the Company's best interest,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe the conduct was unlawful. Such indemnity is limited to the extent
that (i) such person is not otherwise indemnified and (ii) such
indemnifications not prohibited by the DGCL or any other applicable law.
Any indemnification under the previous paragraph (unless ordered by a
court) shall be made by the Company only as authorized in the specific case
upon the determination that indemnification of the director or officer is
proper in the circumstances because that person has met the applicable standard
of conduct set forth above. Such determination shall be made (i) by the Board
of Directors by a majority vote of a quorum of disinterested directors who are
not parties to such action or (ii) if such quorum is not obtainable or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion. To the extent that a director or officer of the
Company shall be successful in prosecuting an indemnity claim, the reasonable
expenses of any such person and the fees and expenses of any special legal
counsel engaged to determine the possibility of indemnification shall be borne
by the Company.
Expenses incurred by a director or officer of the Company in defending
a civil or criminal action, suit or proceeding shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or
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<PAGE> 4
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Company as authorized by the
Bylaws.
The indemnification and advancement of expenses provided by, or
granted pursuant to Article IV of the Bylaws is not deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled, both as to action in that person's official capacity and as to
action in another capacity while holding such office.
The Board of Directors has the power to authorize the Company to
purchase and maintain insurance on behalf of the Company and others to the
extent that power to do so has not been prohibited by the DGCL, create any fund
to secure any of its indemnification obligations and give other indemnification
to the extent permitted by law. The obligations of the Company to indemnify a
director or officer under Article IV of the Bylaws is a contract between the
Company and such director or officer and no modification or repeal of the
Bylaws shall detrimentally affect such officer or director with regard to that
person's acts or omissions prior to such amendment or repeal.
The Company has also purchased insurance for its directors and
officers for certain losses arising from claims or charges made against them in
their capacities as directors and officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
4.1 Restated Certificate of Incorporation of Registrant.
4.2 Bylaws of Registrant (incorporated by reference to Exhibit 3.2
to Registrant's Form S-1 Registration Statement, Amendment
No. 1 (No. 33-44244)).
4.3 Registrants 1995 Stock Option Plan (incorporated by reference
to Exhibit 10.16 to Registrant's Form S-2 Registration
Statement, Amendment No. 2 (No. 33-57513).
4.4 Registrant's Non-Employee Director Stock Option Plan
(incorporated by reference to Exhibit 10.17 to Registrant's
Form S-2 Registration Statement, Amendment No. 2 (No.
33-57513)).
4.5 Form of Certificate of Registrant's Class A Common Stock, $.01
par value per share (incorporated by reference to Exhibit 1 to
Registrant's Form 8-A (No. 000-20485), filed with the
Securities and Exchange Commission on March 24, 1995.
5.1 Opinion and Consent of Dechert Price & Rhoads.
15 Not Applicable.
23.1 Consent of Ernst & Young LLP (contained on page 8).
23.2 Consent of Dechert Price & Rhoads (included in Exhibit 5.1).
24 Power of Attorney (set forth on the signature page to the
Registration Statement).
28 Not Applicable.
99 Not Applicable.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual reports pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions described in Item 6
hereof, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such
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<PAGE> 6
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, such registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act,
each registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
June 7, 1995.
AMERISOURCE HEALTH CORPORATION
BY /S/ KURT J. HILZINGER
-----------------------------------------
KURT J. HILZINGER
VICE PRESIDENT, CHIEF FINANCIAL OFFICER
AND TREASURER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John F. McNamara, Kurt J. Hilzinger and
Teresa T. Ciccotelli, Esq. and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, in any and all capacities, to sign all amendments (including
post-effective amendments) to the Registration Statement in which this power of
attorney is attached, and to file all those amendments and exhibits to them and
other documents to be filed in connection with them, with the Securities and
Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ John F. McNamara Chairman of the Board June 7, 1995
- ----------------------------------- President and Chief
John F. McNamara Executive Officer
(Principal Executive Officer)
/s/ Kurt J. Hilzinger Vice President, June 7, 1995
- ----------------------------------- Chief Financial Officer
Kurt J. Hilzinger and Treasurer
(Principal Financial Officer)
/s/ John A. Kurcik Vice President, Controller June 7, 1995
- ----------------------------------- and Assistant Treasurer
John A. Kurcik (Principal Accounting Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
Director
- -----------------------------------
Bruce C. Bruckmann
/s/ Michael Delaney Director June 7, 1995
- -----------------------------------
Michael Delaney
Director
- -----------------------------------
Richard C. Gozon
/s/ Lawrence C. Karlson Director June 7, 1995
- -----------------------------------
Lawrence C. Karlson
/s/ George H. Strong Director June 7, 1995
- -----------------------------------
George H. Strong
Director
- -----------------------------------
James A. Urry
/s/ Barton J. Winokur Director June 7, 1995
- -----------------------------------
Barton J. Winokur
</TABLE>
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<PAGE> 9
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 33- ) for the registration of 1,218,536 shares of
Class A Common Stock of AmeriSource Health Corporation pertaining to the
AmeriSource Health Corporation 1995 Stock Option Plan and the AmeriSource
Health Corporation Non-Employee Director Stock Option Plan, of our report dated
November 2, 1994, with respect to the consolidated financial statements and
schedules of AmeriSource Health Corporation included in its Form 10-K for the
year ended September 30, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
June 6, 1995
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<PAGE> 1
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERISOURCE HEALTH CORPORATION
1. Name. The name of the corporation is AmeriSource Health
Corporation (the "Corporation").
2. Registered Office and Agent. The address of its registered
office in the State of Delaware is 32 Loockerman Square, Suite L-100, City of
Dover 19901, County of Kent. The name of its registered agent at such address
is The Prentice-Hall Corporation System, Inc.
3. Purpose. The purposes for which the Corporation is formed are
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware and to possess and exercise all
of the powers and privileges granted by such law and other law of Delaware.
4. Authorized Capital. The aggregate number of shares of stock
which the Corporation shall have authority to issue is 67,000,000 shares,
divided into three (3) classes consisting of 50,000,000 shares of Class A
Common Stock, par value $0.01 per share ("Class A Common Stock"); 15,000,000
shares of Class B Common Stock, par value $0.01 per share ("Class B Common
Stock"); and 2,000,000 shares of Class C Common Stock, par value $0.01 per
share ("Class C Common Stock"). Class A Common Stock, Class B Common Stock and
Class C Common Stock are collectively referred to herein as "Common Stock."
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class.
(a) CLASS A, CLASS B AND CLASS C COMMON STOCK
Except as otherwise provided herein, all shares of Class A
Common Stock, Class B Common Stock and Class C Common Stock will be identical
and will entitle the holders thereof to the same rights and privileges.
(i) Certain Definitions. As used herein, the following
terms will have the meanings set forth below:
<PAGE> 2
(A) "Accredited Investor" shall have the meaning set
forth for such term in Rule 501 of Regulation D promulgated under the
Securities Act, as such Regulation may be amended from time to time.
(B) "Brokers' Transactions" shall mean a sale of
shares of Common Stock which are effected pursuant to a transaction by a broker
in which such broker (i) does no more than execute the order or orders to sell
the shares as agent for the person for whose account the shares are sold, and
receives no more than the usual and customary broker's commission; and (ii)
neither solicits nor arranges for the solicitation of customers' orders to buy
the shares in anticipation of or in connection with the transaction; provided,
that the foregoing shall not preclude (a) inquiries by the broker of other
brokers or dealers who have indicated an interest in the shares within the
preceding 60 days; (b) inquiries by the broker of his customers who have
indicated an unsolicited bona fide interest in the shares within the preceding
10 business days; or (c) the publication by the broker of bid and ask
quotations for the shares in an inter-dealer quotation system provided that
such quotations are incident to the maintenance of a bona fide inter-dealer
market for the shares for the broker's own account and that the broker has
published bona fide bid and ask quotations for the shares in an inter-dealer
quotation system on each of at least twelve days within the preceding thirty
calendar days with no more than four business days in succession without such
two-way quotations.
(C) "Convertible Securities" shall mean evidences of
indebtedness, shares of stock, options, warrants or other securities which are
convertible into or exchangeable or exercisable for, with or without payment of
additional consideration of cash or property, shares of Common Stock.
(D) "Holdback Period" shall mean the period beginning
on the day a registration statement filed under the Securities Act and relating
to a Subsequent Public Offering is declared effective by the Securities and
Exchange Commission (or its successor agency) and ending on the 90th day after
the closing of the sale of shares pursuant to such Subsequent Public Offering.
(E) "Public Sale" shall mean a sale of shares of
Common Stock which meets all of the following requirements: (i) the securities
shall be sold in Brokers' Transactions or in transactions directly with a
"market maker," as that term is defined in Section 3(a)(38) of the Securities
Exchange Act of 1934, as amended; (ii) the person selling the shares shall not
(1) solicit or arrange for the solicitation of
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<PAGE> 3
orders to buy the shares in anticipation of or in connection with such
transactions or (2) make any payment in connection with the offer or sale of
the shares to any person other than the broker who executed the order to sell
the shares; and (iii) the terms of the sale of such shares to the purchaser
thereof have not been privately negotiated.
(F) "Securities Act" shall mean the Securities Act of
1933, as amended.
(G) "Subsequent Public Offering" shall mean the
closing of a sale in an underwritten offering, whether primary or secondary, of
any shares of Common Stock or Convertible Securities, pursuant to an effective
registration statement under the Securities Act (other than a Unit Offering, a
registration statement on Forms S-8 or S-4 or any successor forms or any other
registration statement relating to a special offering to employees or security
holders), unless such Common Stock or Convertible Securities that are the
subject of such registration statement are subject to restrictions
substantially similar to the restrictions with respect to Class C Common Stock
set forth herein.
(H) "Transfer" shall mean the transfer, sale,
assignment, pledge, hypothecation or other disposition or encumbrance of shares
of Common Stock.
(I) "Transfer Restriction Termination Date" means the
90th day after the closing of the first Subsequent Public Offering to occur
after the completion of the public offering of Class C Common Stock
contemplated by the Corporation's Registration Statement No. 33-27835 filed
with the Securities and Exchange Commission under the Securities Act.
(J) "Unit Offering" shall mean a public offering of a
combination of debt and equity securities of the Corporation and/or its
subsidiaries in which not more than 10% of the gross proceeds received by the
Corporation and its subsidiaries from the sale of such securities is
attributable to such equity securities; provided that after giving effect to
such offering, the Corporation does not have a class of equity securities
required to be registered under the Securities Exchange Act of 1934, as
amended.
(ii) Dividends. Holders of Common Stock will be entitled
to receive such dividends as may be declared by the Board of Directors;
provided that if dividends are declared which
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are payable in shares of Class A Common Stock, Class B Common Stock or Class C
Common Stock, dividends will be declared which are payable at the same rate on
each other class of Common Stock and the dividends payable in shares of Class A
Common Stock will be payable to holders of Class A Common Stock, the dividends
payable in shares of Class B Common Stock will be payable to holders of Class B
Common Stock, and the dividends payable in shares of Class C Common Stock will
be payable to holders of Class C Common Stock.
(iii) Conversion.
(A) Class A Common Stock and Class B Common Stock.
Each record holder of Class A Common Stock will be entitled to convert any or
all of such holder's Class A Common Stock into the same number of shares of
Class B Common Stock (but only to the extent that such record holder of Class A
Common Stock shall be deemed to be required to convert such Class A Common
Stock into Class B Common Stock pursuant to applicable law), and each record
holder of Class B Common Stock will be entitled to convert any or all of the
shares of such holder's Class B Common Stock into the same number of shares of
Class A Common Stock; provided, however, that at the time of conversion of
shares of Class B Common Stock into shares of Class A Common Stock such holder
would be permitted, pursuant to applicable law, to hold the total number of
shares of Class A Common Stock which he would hold after giving effect to such
conversion.
Each conversion of shares of Class A Common Stock
into shares of Class B Common Stock, or shares of Class B Common Stock into
shares of Class A Common Stock, as the case may be, will be effected by the
surrender of the certificate or certificates representing the shares to be
converted at the principal office of the Corporation at any time during normal
business hours, together with a written notice by the holder of such shares
stating the number of shares that any such holder desires to convert into the
other class of Common Stock. Such conversion will be deemed to have been
effected as of the close of business on the date on which such certificate or
certificates have been surrendered and such notice has been received by the
Corporation, and at such time the rights of any such holder with respect to the
converted class of Common Stock will cease and the person or persons in whose
name or names the certificate or certificates for shares of the other class of
Common Stock are to be issued upon such conversion will be deemed to have
become the holder or holders of record of the shares of such other class of
Common Stock represented thereby. Promptly after such surrender and the
receipt by the Corporation of the written notice from the holder hereinbefore
referred to, the Corporation will issue and deliver in accordance with the
surrendering holder's instructions the certificate or certificates for the
other class of Common
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<PAGE> 5
Stock issuable upon such conversion and a certificate representing any shares
of Common Stock which were represented by the certificate or certificates
delivered to the Corporation in connection with such conversion but which were
not converted. The issuance of certificates for the other class of Common
Stock upon conversion will be made without charge to the holder or holders of
such shares for any issuance tax (except stock transfer taxes) in respect
thereof or other cost incurred by the Corporation in connection with such
conversion.
(B) Class C Common Stock. A share of Class C Common
Stock will automatically be converted into a share of Class A Common Stock (i)
immediately prior to its sale in a Subsequent Public Offering; or (ii) at such
time as such share of Class C Common Stock has been sold in a Public Sale after
a Subsequent Public Offering, and in compliance with the maximum quantity
limitations as set forth in paragraph 4(a)(iv)(C) hereof, if such maximum
quantity limitations remain in effect. On the date of such automatic
conversion, all rights with respect to the Class C Common Stock so converted
will terminate, except for the rights of the holders thereof, upon surrender of
their certificate or certificates therefor, to receive certificates for an
equal number of shares of Class A Common Stock.
As soon as practical after the date of such automatic
conversion, the holder of shares of Class C Common Stock so converted shall
surrender to the Corporation the certificate or certificates representing the
shares so converted, and thereafter the Corporation shall cause to be issued
and delivered to such holder a certificate for the number of shares of Class A
Common Stock issuable upon such conversion in accordance with the provisions
hereof. All certificates evidencing shares of Class C Common Stock which are
automatically converted into Class A Common Stock in accordance with the
provisions hereof shall, from and after the dates such certificates are so
converted, be deemed to have been retired and cancelled and the shares of Class
C Common Stock represented thereby converted into Class A Common Stock for all
purposes, notwithstanding the failure of the holder or holders thereof to
surrender such certificates to the Corporation. The Corporation may thereafter
take such appropriate action as may be necessary to reduce the authorized
shares of Class C Common Stock accordingly. Upon such automatic conversion of
a share of Class C Common Stock into a share of Class A Common Stock, such
share will no longer be subject to any of the restrictions on transfer
described herein.
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<PAGE> 6
(iv) Restrictions on Transfer.
(A) Restrictions Prior to Transfer Restriction
Termination Date and During Holdback Period. Except as provided in paragraph
4(a)(iv)(B) hereof, prior to and on the Transfer Restriction Termination Date,
and during any Holdback Period, a holder of shares of Class C Common Stock may
not effect a Transfer of such shares, unless (1) the transferee is an
Accredited Investor, (2) the Transfer under consideration is a privately
negotiated transaction and (3) the number of shares of Class C Common Stock
subject to the transfer is not less than the lesser of (i) 2,500 shares or (ii)
all shares of Class C Common Stock held by such holder. The minimum number of
shares set forth in the previous sentence shall be appropriately adjusted in
the event of a stock split, reverse stock split, stock dividend or similar
transaction by the Corporation.
(B) Certain Exceptions. A Transfer of shares of
Class C Common Stock may be effected without regard to the provisions of
paragraph 4(a)(iv)(A) hereof under the following circumstances:
(1) If the holder of shares of Class C Common
Stock is a natural person, pursuant to will or the laws of descent and
distribution;
(2) If the holder of shares of Class C Common
Stock is not a natural person, pursuant to a merger of such holder into,
consolidation of such holder with, or sale of all or substantially all of the
assets of such holder to, another entity;
(3) If the holder of shares of Class C Common
Stock is not a natural person, pursuant to the liquidation or dissolution
(voluntary or involuntary) or winding up of such holder; or
(4) In order to enable the holder to exchange or
transfer shares of Class C Common Stock in connection with a merger of the
Corporation into, or the consolidation of the Corporation with, a corporation
(other than a subsidiary of the Corporation) where such other corporation
survives the merger.
(C) Restrictions After Transfer Restriction
Termination Date. Except during a Holdback Period, after the Transfer
Restriction Termination Date, a holder of shares of Class C Common Stock may
transfer such shares free of any restrictions on transfer contained herein;
provided, that for a
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<PAGE> 7
period of 270 days after the Transfer Restriction Termination Date, the number
of shares of Class C Common Stock sold publicly in brokers' transactions
(within the meaning of Section 4(4) of the Securities Act) by such holder and
its affiliates, together with the number of shares of Common Stock sold
publicly in such brokers' transactions by such holder and its affiliates within
the preceding three months, shall not exceed the greater of (i) one percent of
the shares of Common Stock outstanding as shown by the most recent report or
statement published by the Corporation, or (ii) the average weekly reported
volume of trading in Common Stock on all national securities exchanges and/or
reported through the automated quotation system of a registered securities
association during the four calendar weeks preceding the date of such transfer.
The calculation of the number of shares set forth in the preceding sentence
shall be made as if a paragraph (e)(3)(i) through paragraph (e)(3)(v) of Rule
144 under the Securities Act (as in effect on September 14, 1989) were
applicable.
(D) Effect of Restrictions; Legends.
(1) Any purported Transfer in violation of the
terms set forth herein shall be null and void and of no force and effect, and
the purported transferee shall have no rights or privileges in or with respect
to the Corporation. Before the Corporation registers a Transfer of Class C
Common Stock on its stock record books, it may require proof, satisfactory to
the Corporation, that the Transfer complies with the restrictions on Transfer
contained herein. The Corporation shall, in its sole discretion, be entitled
to resolve any and all disputes relating to compliance with the restrictions on
Transfer set forth herein, including, but not limited to, the conversion of
shares of Class C Common Stock into shares of Class A Common Stock under
paragraph 4(a)(iii)(B) hereof.
(2) Certificates representing shares of Class C
Common Stock will bear a legend indicating that such shares are subject to the
restrictions on transfer set forth herein.
(v) Transfers. The Corporation will not close its books
against the transfer of any share of Common Stock, or of any share of Common
Stock issued or issuable upon conversion of shares of the other Class of Common
Stock, in any manner that would interfere with the timely conversion of such
shares of Common Stock.
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<PAGE> 8
(vi) Subdivision and Combinations of Shares. If the
Corporation in any manner subdivides or combines the outstanding shares of any
class of Common Stock, the outstanding shares of the other classes of Common
Stock will be proportionately subdivided or combined.
(vii) Reservation of Shares for Conversion. So long as
any shares of any class of Common Stock are outstanding, the Corporation will
at all times reserve and keep available out of its authorized but unissued
shares of Class A Common Stock (or any shares of Class A Common Stock which are
held as treasury shares), the number of shares sufficient for issuance upon
conversion.
(viii) Distribution of Assets. In the event of the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, holders of Common Stock will be entitled to receive all of the
remaining assets of the Corporation available for distribution to its
stockholders.
(ix) Voting Rights. The holders of Class A Common
Stock shall have the general right to vote for all purposes, including the
election of directors, as provided by law. Each holder of Class A Common Stock
shall be entitled to one vote for each share thereof held. Except as otherwise
required by law, the holders of Class B Common Stock and Class C Common Stock
shall have no voting rights.
(x) Merger, etc. In connection with any merger,
consolidation, or recapitalization in which holders of Class A Common Stock
generally receive, or are given, the opportunity to receive, consideration for
their shares (a) all holders of Class B Common Stock and Class C Common Stock
shall be given the opportunity to receive the same form of consideration for
their shares as is received by holders of Class A Common Stock and (b) holders
of Class B Common Stock and Class C Common Stock shall be entitled to receive
the same amount of consideration per share as received by holders of Class A
Common Stock.
5. Incorporator. The name and mailing address of the
incorporator are as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Cathyann Bixby 4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
</TABLE>
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<PAGE> 9
6. Term. The corporation is to have perpetual existence.
7. Bylaws. The bylaws of the Corporation may be altered, amended
or repealed by the vote of a majority of all of the directors or by the vote of
holders of a majority of the outstanding stock entitled to vote.
8. Election of Directors. Election of directors need not be by
written ballot unless the bylaws of the Corporation shall so provide.
9. Right to Amend. The Corporation reserves the right to amend
the provisions in this certificate and in any certificate amendatory hereof in
the manner now or hereafter prescribed by law, and all rights conferred on
stockholders or others hereunder or thereunder are granted subject to such
reservation.
10. Limitation on Liability. The directors of the Corporation
shall be entitled to the benefits of all limitations on the liability of
directors generally that are now or hereafter become available under the
General Corporation Law of Delaware. Without limiting the generality of the
foregoing, no director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of Delaware, or
(iv) for any transaction from which the director derived an improper personal
benefit. Any repeal or modification of this Section 10 shall be prospective
only, and shall not affect, to the detriment of any director, any limitation on
the personal liability of a director of the Corporation existing at the time of
such repeal or modification.
11. Business Combinations with Interested Stockholders. Pursuant
to Section 203(b)(3) of the General Corporation Law of Delaware, the
Corporation shall not be governed by the provisions contained in Section 203(a)
of the General Corporation Law of Delaware regarding restrictions on business
combinations with interested stockholders.
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<PAGE> 1
EXHIBIT 5.1
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Telephone: (215) 994-4000
Facsimile: (215) 994-2222
June 7, 1995
AmeriSource Health Corporation
P.O. Box 959
Valley Forge, PA 19482
Re: AmeriSource Health Corporation ("AmeriSource"):
1,218,536 Shares of Class A Common Stock
Ladies and Gentlemen:
We have acted as your counsel in connection with the
registration of an aggregate of 1,218,536 shares (the "Shares") of your Class A
Common Stock, par value $0.01 per share ("Class A Common Stock") pursuant to a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
today with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act") relating to the AmeriSource 1995 Stock
Option Plan (the "1995 Plan") and the AmeriSource Non-Employee Directors Stock
Option Plan (the "Directors Plan," and collectively with the 1995 Plan, the
"Plans"). You have informed us, and we have assumed for purposes of this
opinion, that the Shares may be either (i) newly issued from AmeriSource's
reserve of authorized but previously unissued shares or (ii) previously
outstanding shares acquired by AmeriSource.
We have participated in the preparation of the Registration
Statement, and have examined such corporate records and documents, certificates
of officers and matters of law as we have considered appropriate to enable us
to give this opinion.
Based upon the foregoing, it is our opinion that the Shares
have been duly and validly authorized by AmeriSource, and upon the
effectiveness of the Registration Statement, the Shares initially issuable upon
exercise of the stock options granted under the Plans, when issued in
accordance with the terms of the respective plans and option award certificates
and delivered to the purchasers thereof against payment of the exercise price
therefor, will be validly issued, fully paid and nonassessable.
We hereby consent to the reference to our firm under the
caption "Interests of Named Experts and Counsel" in Item 5 of
<PAGE> 2
AmeriSource Health Corporation
June 7, 1995
Page 2
the Registration Statement and to the filing of this opinion as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
/s/ Dechert Price & Rhoads
